Acting in Dual Capacity- Barred by law?

As we all know, advocates and solicitors ought to obtain a power of attorney from their clients including non-resident clients, in order to facilitate the Advocate’s firm or Solicitor’s firm to act in its professional capacity for the client. Many times, besides acting as Constituted Attorneys i.e. power of attorney holders, advocates also act as the advocates on record. The legal validity of this practice, which has become customary, has been questioned and debated upon in various judgments.

The principal issue in this scenario is whether an advocate can act as a Constituted Attorney of a party, and thereby be authorised to sign pleadings and affidavits on behalf of the suitor and also act and plead for the party concerned in the same litigation proceeding.

The signature of the Constituted Attorney on pleadings, affidavits, vakalatnama and other documents is liable to be equated to the signature of a party itself. But can this advocate who acts as a Constituted Attorney of a suitor also act as an advocate on record for the same cause? Can he act in such dual capacity?

This question was taken up in the case, Oil And Natural Gas Commission vs. Offshore Enterprises Inc. [AIR 1993 Bom 217] wherein the Court answered in negative. The Court categorically held that a Constituted Attorney is merely entitled to ‘act’ or ‘appear’ for the party but has no right to ‘plead’ in Court.

Advocates or members of the Bar are governed by the provisions of the Advocates Act, 1961. Advocates are deemed to be officers of the Court and therefore, ought to act with complete impartiality and detachment and are not entitled to identify themselves with their clients or the cause personally whereas a Constituted Attorney is entitled to identify himself with the donor of the Power of Attorney and act in the same manner as the party is entitled to act. As per Order III Rule 4 of the Code of Civil Procedure, a vakalatmana should be signed by the party or by his recognised agent in favour of the pleader. The Court held that it is a well-settled principle that the pleader acting in his capacity as Constituted Attorney of a litigant cannot sign such vakalatnama in his own favour as an Advocate or in favour of the firm in which he himself is one of the partners.

When Affidavits are filed under Order XIX Rule 2 of the Code of Civil Procedure by the Constituted Attorney, he can be summoned by the Court for cross-examination. In such cases, the very possibility of an advocate who is holding a power of attorney being summoned as witness sufficiently implies that the law prohibits advocates acting in dual capacity.

Therefore, the proposition to be understood here is that a recognized agent of a suitor is on par with the party himself whereas an advocate is an independent person whose duty is to assist the Court in its task of administering justice. The law does not permit an advocate to act in such dual capacity because an advocate’s necessary traits such as detachment and impartiality are likely to be jeopardised when he acts in both capacities. Furthermore, it is not sufficient that an advocate acts impartially, it is also necessary that he appears to act impartially.

A plausible solution to overcome this issue can be inferred from the 2001 case, Columbia Pictures Industries vs. Siti Cable Network Ltd. [94 (2001) DLT 177]. Two advocates cannot be said to be acting in dual capacity, if the identity and roles of the two advocates are clearly distinct and do not merge at any moment. A Constituted Attorney can appoint another advocate to plead on behalf of the party. This advocate shall not be associated with the Constituted Attorney’s firm. However, he or she may not be said to be acting in dual capacity merely because they share the same address. If it is possible to prove that the advocate is not a partner in the Constituted Attorney’s firm or working for the Constituted Attorney’s firm, the issue of dual capacity can be overcome.

Therefore, though the existing practice followed by the law firms in case of non-resident clients, acting in dual capacity is barred by law and ought to be discontinued, the law does not bar an independent advocate who is not associated with the law firm or not on the payroll of the law firm but using the law firm’s address, from pleading on behalf of the clients.

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